The US is the world’s greatest prison state; of that there can be little debate.

By any method of counting we incarcerate more of our citizens than any other country in the world. Even China has fewer total prisoners than the US, and China’s per capita rate is also much smaller than the US rate. Yes my friends, even China has less criminals in jail than we do. Surprised?

“Statistics released today by the Bureau of Justice Statistics (BJS), a branch of the US Department of Justice, show that at the end of 2006, more than 2.25 million persons were incarcerated in US prisons and jails, an all-time high. This number represents an incarceration rate of 751 per 100,000 US residents, the highest such rate in the world. By contrast, the United Kingdom’s incarceration rate is 148 per 100,000 residents; the rate in Canada is 107; and in France it is 85. The US rate is also substantially higher than that of Libya (217 per 100,000), Iran (212), and China (119).” (Human Rights Watch)

The question is whether the law is a shield that protects “the people” or a club that is used to beat down them down. If we incarcerate many times as many of our citizens per capita than our European allies, can we find an explanation for this difference? Are we really that much more criminally inclined here in the good old USA than populations abroad that seem to be very similar to us?

Paul Craig Roberts once wrote that the principles that make our law a shield of protection for the citizens, and not a weapon of tyranny in the hands of prosecutors, are called “the Rights of Englishmen.” The Rights of Englishmen were listed by Mr. Roberts as: due process, the attorney-client privilege, equality before the law, the right to confront adverse witnesses, and the prohibitions against attacking a person through his property, bills of attainder, self-incrimination, retroactive law, and crimes without intent. He claimed these rights are the bedrock of our legal system.

Let us look at due process; what is it? The Constitution guarantees that the government cannot take away a person’s basic right to life, liberty or property, without due process of law. I suppose one could say that “due process” is basic fairness. You could say that due process means that the state must prove its case in a manner that is just and moral in a court of law while respecting the other rights as outlined above. In our system we expect that the truth will come out in the court trail of the accused, and we believe that everyone accused will have their day in court. At least, that is our hope.

I invited a criminal defense attorney to speak to a class of 8th grade students in a private school a few years ago. He was a parent of one of the children and after he was done he recommended another parent who was also a defense attorney to speak; and I gave that other attorney equal time.

The talks by both men were simply amazing. They both eventually got to the fact that over 97 percent of the cases in our town are settled by plea bargain. Both had stories of men who pleaded guilty to avoid trail even though they were innocent. These stories would immediately get the attention of the children, “why would someone say they were guilty when they were not”?

The answer has to do with the awesome power of the prosecutor’s office and the idea of piling criminal counts on top of other criminal counts until any matter could net one untold years in jail. We were told by both attorneys that for centuries on end criminal charges were not arbitrary. We in America would charge a horse thief with theft, but not with conspiracy to steal horses, willful evasion of taxes on stolen horses, cruelty to animals and diminishing the civil rights of horse owners; but this is no longer true.

The prosecutor’s office is also funded by the taxpayer and can spend untold fortunes on “expert witnesses” that are paid to testify in court to whatever the prosecutor’s theory is in the matter. The prosecutor can also offer time off or immunity to convicted criminals if they will testify against the defendant in the case. The criminals will often say whatever is necessary to help their own situation and the truth or justice has nothing to do with it.

We were told that it is a fiction that the government will not retaliate against you if you demand your constitutional right to a jury trail in a criminal case. That was the most shocking statement of the day to my young charges.

The class and I were left with the distinct impression that the courts were rigged to fill jails and that justice was not on the agenda. When one of the children asked, “how is that fair?”; the answer was that the fair came to town in October and was at the fairgrounds on west Highway 50. This seems to be a well-known joke among lawyers, but it was a real comedown for the children and myself.

We were left with the idea that our system is founded on the idea that only in a proper court case tried by a jury of our peers could justice even have a chance of prevailing. The famous rights of Englishmen identified by Mr. Roberts are without meaning as long as there is no trial. That means in my town there is no justice in at least 97 percent of the cases. No wonder the jails are full. As long as we circumvent the court trail by jury with the plea bargain there will be no justice in America for the accused, be he innocent or guilty.

Do we really not care that justice is arbitrary in our country? I know I care; but what can be done? I suppose for now we try to inform our fellow citizens and hope that they see that an injustice in any one case is an injustice for everyone.

March 26, 2008

Joseph Potter [send him mail] lives in Florida and teaches in a small private school.